State v. Wilkins

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State v. Wilkins No. 65, September Term 2005 HEADNOTES: In 1972, Ralph Edward Wilkins received a life sentence for first-degree murder. On direct appeal to the Court of Special A ppeals he ra ised num erous issue s but did not raise any issues as to the impro priety of the sen tencing ord er. The interm ediate appe llate court affirmed. Mo re than thirty years later, Wilkins filed a petition for post conviction relief alleging that the sentencing judge failed to recognize his right to exercise discretion in the imposition of the life sentence. The Circuit Court for Prince George s County granted the petition in part to allow Wilkins to file a belated motion for modification of sentence. Wilkins requested that the court hold his motion for modification of sentence in abeyance. Sub sequ ently, Wilkins filed a motion to correct an illegal sentence alleging the same defect in sentencing that he alleged in his petition for post conviction relief. The court denied the motion. Wilkins appealed. The Court of Special Appeals held that the sentencing court s failure to recogniz e its right to con sider suspe nding a po rtion of the life sentence rendered the sentence illegal within the meaning of Rule 4-345 (a). W e reversed , holding tha t a motion to correct an illegal sentence is not an appropriate vehicle to raise the question of abuse of judicial d iscretion occurr ing dur ing sen tencing . Further, the alleged defect in the sentencing procedure should have been raised on direct appeal from the conviction and sentence imposed in this case. Therefore, under the circumstances of this case, a life sentence for murder in the first degree is not an illegal sentence within the contemplation of Rule 4-345(a). In an appropriate case, the alleged defect in sentencing may b e a proper subjec t for po st conv iction re lief. In the Circu it Court for P rince Geo rge s Cou nty Criminal Case No. 11,187 IN THE COURT OF APPEALS OF MARYLAND No. 65 September Term, 2005 ____________________________________ STATE OF MARYLAND v. RALPH EDWARD WILKINS ____________________________________ Bell, C.J. Raker Wilner Cathell Harrell Battaglia Greene, JJ. ______________________________ ____ Opinion by Greene, J. Bell, C.J. and Harrell, J., Concur and Dissent. ____________________________________ Filed: June 9, 2006 Ralph Edwar d Wilkins w as tried befo re a jury in the C ircuit Court for Prince G eorge s County on December 6 through 8, 1971, and convicted of murder in the first degree. On January 24, 1 972, he w as sentence d to life imprisonment. On direct appeal to the Court of Special Appea ls, that court affirm ed the ju dgme nt and s entenc e. Wilkins v. State, 16 Md. App. 587, 30 0 A.2d 411 (1 973), aff d, 270 Md. 62, 310 A.2d 39 (1973), cert. denied, Wilkins v. Maryland, 415 U .S. 992 , 94 S.C t. 1592, 3 9 L.Ed .2d 889 (1974 ). On June 16, 2003, more than thirty years after his direct appeal of the judgment and sentence entered against him, Wilkins filed a petition for post conviction relief in the C ircuit Court for Prince George s County. He contended that the sentencing judge abused his discretion by failing to recognize his authority to suspend any part of the life sentence imposed. On January 6, 2004, the court determined that there w as no merit to Wilkins s claim that the senten cing judge abused h is discretion. Nonetheless, the court granted partial post conviction relief by allowing Wilkins to file a belated motion for modification of sentence within 90 days.1 On February 9, 2004, Wilkins filed a notice of appeal to the Court of Special A ppeals based on the Circuit Court s ruling which denied in part his petition for post conviction relief. The intermediate appellate court dismissed the appeal as untimely. Its mandate issued on June 8, 2004. Subsequently, on June 9, 2004, Wilkins filed a second notice of appeal to the 1 Pursuant to the Circuit Court s directive, on March 15, 2004, Wilkins filed a motion for modification of sentence. On A pril 28, 2004, Wilkins requ ested that the Circuit Court hold his motion for modification in abeyance. Thereafter, on May 6, 2004, Wilkins filed a motion to correct an illegal sentence. The Circuit Court denied that motion on May 19, 2004. Court of Special Appeals. Wilkins based this appeal on the Circuit Court s ruling dated May 19, 2004, which denied his motion to correc t an illegal sente nce. Aga in, the interme diate appellate court dis miss ed W ilkin s s appeal as untimely. 2 Although Wilkins s appeal was dismissed as untimely, the court reconsidered pursuant to Md. Rule 8-5023 and reinstated the appeal. The intermediate appellate court held that the sentencing court s failure to recognize its right to consider suspending a portion of . . . [a life ] sentence renders the sentence illegal. Wilkins v. Sta te, 162 Md. App. 512, 525, 875 A.2d 231, 239 (2005). We granted certiorari to review the decision o f the Court of Sp ecial Appeals in vaca ting Wilkins s sentence, as an illegal sentence, and remanding the case to the trial court for re-sentencing. State v. Wilkins, 389 Md. 124, 88 3 A.2d 914 (2 005). In our review of the judgment of the intermediate appellate co urt, we focus primarily on the May 19, 2004, ruling of the Circ uit Court denying W ilkins s motio n to correct a n illegal senten ce and the intermediate appellate court s reversal of that ruling. We need not reach the merits of Wilkins s claim that the sentencing judge failed to exercise d iscretion. W e hold that a sentencing judge s fa ilure to recognize his or her right to exercise discretion in the imposition of a sentence does not 2 Wilkins s briefs were due in the Court of Special Appeals on August 23, 2004, but were n ot filed in court b y that date . 3 Rule 8-502. Filing of briefs. (a) Duty to file; tim e. Unless oth erwise ord ered by the ap pellate court: (1) Appe llant s br ief. Within 40 days after the filing of the record, an appellant other than a cross-appellant shall file a brief conforming to the requirements of Rule 8-503. -2- render the sentence illegal w ithin the meaning of M d. Rule 4-345(a). 4 Discussion The court may correct an illegal sentence at any time. Rule 4-345 (a). The denial of a motion to correct an illega l senten ce is app ealable . State v. Kanaras, 357 Md. 170, 177, 742 A.2d 508, 512 (1999). An illegal sentence is a sentence not permitted b y law. Walczak v. State, 302 Md. 422, 427, 488 A.2d 949, 951 (1985). In Holme s v. State, 362 Md. 190, 195-96, 763 A.2d 737, 740 (2000) this Court stated that [a] sentence that is not permitted by statute is an illegal sentence. (Citations omitted.) Judge Moylan expounded on the concept of an illegal sentence in Corcora n v. State, 67 Md. App. 252, 507 A.2d 200 cert. denied, 307 M d. 83, 51 2 A.2d 377, cert. denied, 479 U.S. 932, 107 S.Ct. 404, 93 L.Ed.2d 357 (1986). He said: The notion of an illegal sentence within the contemplation of the Walczak decision deals with substantive law, not procedural law. It has obvious reference to a sentence which is beyond th e statutorily granted powe r of the j udge to impos e. It does not re motely suggest that a sentence, proper on its face, becomes an illegal sentence because of some arguable procedural flaw in the sentencing procedure. Corcoran, 67 Md. App. at 255, 507 A.2d at 202. See also Burch v. S tate, 346 Md. 253, 289, cert. denied, 522 U.S . 1001 (1997) ( N ot every procedural irregularity, even in a capital sentencing procee ding, re sults in a senten ce not p ermitted by law. ). In other word s, a 4 Rule 4-345, Sentencing Reversing power of court (a) Illegal Sentence. The court may correct an illegal sentence at any time. -3- motion to correct an illegal sentenc e is not an alter native me thod of o btaining be lated appellate review of the proceedings that led to the im position of judgmen t and senten ce in a crimin al case. Recently in Evans v. S tate, 382 Md. 248, 855 A.2d 309 (2004), this Court noted that a motion to correct an illegal sentence can be granted on ly where there is some illega lity in the sentence itself or where no sentence should have been imposed. We summarized the relevant case law: The State correctly argues that, as a general rule, a Rule 4-345 (a) motion to correct an illegal sentence is not appropriate where the alleged illegality did not inhere in [the defendant s] sentence. State v. Kanaras, supra, 357 M s. at 185, 742 A.2d at 51 7. A mo tion to correct an illegal sentence ordinarily can be granted on ly where there is some illegality in the senten ce itself or w here no se ntence sho uld have been im posed . See, e.g ., Ridgew ay v. State, 369 Md. 165, 171, 797 A.2d 12 87, 1290 (2002); Holmes v. State, 362 Md. 190, 763 A.2d 737 (2000); Moosa vi v. State, 355 Md. 651, 662-663, 736 A.2d 285, 291 (1999). On the other hand, a trial court error during the sentencing proceeding is not ordinarily cognizable under Rule 4-435 (a) where th e resulting sen tence or san ction is itself law ful. Randa ll Book Corp. v. Sta te, 316 Md. 315, 323, 558 A.2d 715, 719 (1989) ( [W]hile improper motivation may justify vacation of the sentence, it does not render the sentence illegal within the meaning of Rule 4435 (a). Appellant did not raise this contention on direct appeal and may not do so here ). See also Hill v. United States, 369 U.S. 424, 430, 82 S.Ct. 46 8, 472, 7 L.Ed.2 d 417, 4 22 (19 62). Evans, 382 Md. at 27 8-79, 855 A.2d at 30 9; see Baker v. State, 389 Md 127, 133-137, 883 A.2d 916, 919-922 (2005) (recognizing in a capital sentencing that an error premised on a novel constitutional question decided after imposition of a capital sentence may be raised in a motion to correct an illeg al sentence ); Oken v. S tate, 378 Md. 179, 184-85, 835 A.2d -4- 1105, 1108( 2003) , cert. denied, 541 U.S. 1017, 124 S.Ct. 2084, 158 L.Ed.2d 632 (2004) (alleging a constitution al error in the capital sen tencing pro ceeding c ontributed to the death sentence was a pro per groun d to raise in a m otion to corre ct an illegal sen tence); Jones v. State, 384 Md. 669, 686, 866 A.2d 151, 161 (2005) (holding that a sentence is illegal if based upon a verdict o f guilty in a jury trial tha t was n ot orally an nounc ed in co urt). An error committed by the trial court during the sentencing proceeding is not ordinarily cognizable under Rule 4-345(a) where the resulting sen tence or san ction is itself lawful. Randa ll Book C orp. State, 316 Md. 315 , 323, 558 A.2d 7 15, 719 (1989). In Hill v. US, 369 U .S. 424 , 430, supra, the trial judge did not permit the defendant to make a statement in his own behalf in violation of the federal rules of criminal procedure (R ule 35). In explaining that the sentence imposed was not illegal by definition, the Supreme Court pointed out that the sentencing judge s error, committed during sentencing, was not of the type that wo uld per mit a co llateral atta ck. Id. Thus, the sentence was not illegal. The punishment meted out was not in excess of that prescribed for the same offense, nor were the terms of the sente nce itself legally or c onstitutio nally inva lid in any re spect. Id. (footnote omitted). In the present case, Wilkins contends that because the sentencing judge did not recognize his authority to suspend a life sentence, the court effectively converted W ilkins s sentence into an illegal man datory life sen tence. Con versely, the State a sserts that the life sentence imposed was within statutory limits and did not violate any statutory or -5- constitutional requireme nt. Moreo ver, the State a sserts that the sentence imposed does not fall into any of the categories ordinarily recognized as grounds for appellate review of sentences. The State points to our decision in Gary v. S tate, 341 Md. 513, 516, 671 A.2d 495, 496 (1996 ),5 where w e explained that only three grounds for appellate review of sentences are recognized in this state: (1) w hether the se ntences co nstitutes cruel a nd unusu al punishment or violates other constitutional requirements; (2) whether the sentencing judge w as motivated by ill-will, prejudice or other impermissible considerations; and (3) whether the sentence was within statutory limits. Therefore, according to the State, in light of the co ntrolling authority of this Court, the intermediate appellate court s determination that Wilkins s sentence was rendered illegal by the sentencing court s failure , after expres sly being referre d to [Art. 27,] Section 641 A6 , 5 In Gary, the petitioner contended that his sentence of life imprisonment for conspiracy to comm it first degree m urder wa s illegal becau se it exceed ed the statutory limitations imposed by the leg islature. Id. at 517, 671 A.2d 49 5, 496. W e found n o merit in that contention because the sentence imposed was the lowest of the statutory penalties for first degree murde r. Therefore, because the sentence imposed did not violate the maximum statutory penalty for consp iracy to murde r, it was n ot illegal. Id. at 517-18, 671 A.2d at 497. 6 Effective October 1, 2001, § 641 A was repealed and re-enacted without substantive change as Md. Code (1957, 2001 Repl. Vol), §§ 6-221 thru 6-222 (a) of the Crimin al Procedu re Article. It read s, in pertinent p art: Upon entering a judgment of conviction, the court having jurisdiction, may suspen d the imposition or execution of sentence and place the defendant on probation upon such terms and conditions as the courts deem proper. The court may impose a sentence for a specified p eriod and p rovide that a lesser period be served in confinement, suspend the remainder of the sentence and grant probation for a period longer than the (contin ued...) -6- to explicitly refer to its discretion to suspend all or a portion of the sentence imposed on Wilkin s is erron eous a nd wa rrants re versal. We note at the outset that the allegation of error, in the present case, do es not inhere in the sen tence its elf. The imposition of a life sentence for first-degree murder is a sentence permitted by law. At the time of Wilkin s s sentencin g in 1972 , Md. Co de (1957 , 1971 Re pl. Vol.), Article 27 § 413,7 provided: Penalty for first de gree murd er; verdict addin g withou t Capital punishment. Every person convicted of murder in the first degree, his or her aiders, a bettors a nd cou nselors , shall suf fer dea th, or undergo a confinement in the penitentiary of the State for the period of th eir natural life, in th e discretion o f the court before whom such person may be tried; provided, ho wever, that the jury in a murder case who render a verdict of murder in the first degree, m ay add thereto the word s withou t capital punish ment, in which case the sentence of the court shall be imprisonment for life, and in no case where a jury shall have rendered a verdict in manner and form as hereinbefore prescribed, without c apital punishment, shall the court in imposing the sentence, sentence the convicted party to pay the dea th pena lty. During the sentencing hearing, W ilkins s attorney argued for a sentence less than life imprisonment because a life sentence is to, in essence, exile him from society. In suppo rt 6 (...continued) sentence but not in excess of five years. 7 Effective October 1, 2002, section 413 was repealed and reenacted without substantive change as Md. Code (1957, 2002 Repl. Vol. ), §§ 2-202 and 2-303 thru 2-304 of the Criminal Law Article. -7- of this argum ent, Wilkins s attorney stated: Your Honor, under the provisions of Art. 27, Section[s] 641 (a)8 [sic] and 6439 this Court h as the discretio n, if it sees fit to exercise that discretion, to give a sentence less than that called for of life imprisonment with a conviction of first-degree murder. The sentencing judge ultimately concluded: I would agree that this may well have bee n a prope r case for the death penalty. On the other hand, this was a question of fact fo r the jury to decide. They decided that you were guilty of murder in the first degree but they recommended and it is mandatory on the court that it be without capital punishment, and thus it will be. Now, even though your counsel has argued that the court could give something else than life imp risonmen t, we don t agree with this. On the other hand, let the record clearly show we will assume that we do have a right to give so meth ing less th an th e dea th pe nalty, but in this case we see no reason in the world why there should be anything other than the life imprisonment in this case because it is just not warranted under the facts of what happened. It was purely and clearly premeditated first-deg ree mu rder an y way you lo ok at it. In our view , irrespective o f any i nterpretation that may be given to the se ntencing judge s reasons for imposition of a life sentence, the sentence imposed was not illegal within the 8 The co rrect cite is to sectio n 641 A . 9 Effective October 1, 2002, § 643 was repealed and re-enacted without substantive change as Md. Code (1957, 2002 Repl. Vol.), § 14-10 2 of the Criminal L aw Article. It provides, in p ertinent part: In all cases where the law prescribing a punishment for crime fixes a maximum and a minimum penalty therefor, the several judges of the circuit courts o f the coun ties . . . may, in lieu of th e minimu m penalty so pres cribed, im pose a l esser pe nalty of th e same charac ter; prov ided, however, that nothing herein contained shall be construed as affecting any maximum penalty fixed by law, or the punishment for any crime whe re the law prov ides one and only o ne penal ty. -8- meaning of Rule 4-345(a). By analogy, the sentencing decision in the present case is no different than a maximum sentence imposed for the following crimes: (1) 30 years for murder in the second degree; (2) 2 0 years for rob bery with a de adly weapon; or (3) life for first-degree rape. All of the above sentences are within the statutory limits for the crimes committed. None of the sente nces cou ld properly be ch aracterized a s an illegal sen tence if the sentencing judge failed to suspend all or any portion of the sentences imposed. Even assuming, without deciding, that the sentencing judge, in this c ase, did not a cknow ledge his discretion to suspend all or a part of the life sentence imposed, the sentence actually imposed was not illegal. Therefore, an alleged defect resulting from failure to acknowledge the discretion to suspend any portion of the life senten ce does n ot render the sentence illeg al. See Gunnin g v. State, 347 Md. 332, 351, 701 A.2 d 374, 38 3 (1997) (f inding reve rsible error where the trial judge abused his discretion in failing to recognize that the State was entitled to withdraw a subsequent offender notice and that the court had discretion to sentence the defendant in acco rd with the plea agreem ent). In Gunning, this Court determined th at the trial judge s failure to exercise discretion, by arbitrarily rejecting th e defend ants reque sts for witne ss identificatio n instructions as always inappropriate, amounted to a misunderstanding of the law, an abuse of discretion, and reversible error. Id. at 353-54, 701 A.2d at 384-85. We summarized the general rules regarding the exercise of judicial discretion: It is will settled tha t a trial judge who encounters a matter that falls within the realm of judicial discretion must exercise his or -9- her discretion in ruling on the m atter. Colter v. Sta te, 297 Md. 423, 426, 466 A.2d 1286, 1288 (1983). That exercise of discretion must be clear from th e record . Nelson v. S tate, 315 Md. 62, 70, 553 A.2d 667, 671 (1989). The co urt s failure to fulfill this function c an am ount to er ror, that ordinarily requires reversal. Maus v . State, 311 Md. 85, 108, 532 A.2d 1066, 1077 (19 87). Id. at 351, 701 A.2d at 383. As to the meaning of judicial discretion this Court said: Judicial discretion is a composite of many things, among which are conclusions drawn from objective criteria; it means a sound judgment exercised with regard to what is right under the circumstances and with out d oing so ar bitra rily or capr iciou sly. Where the decision or order of the trial court is a matter of discretion it will not be disturbed on review except on a clear showing of abuse of discretion manifestly unreasonable, or exercis ed on u ntenab le grou nds, or f or unte nable re asons. Id. at 351-52, 701 A.2d at 383 (citation s omitte d). See Beverly v. State, 349 Md. 106, 127, 707 A.2d 91, 101 (1998) (finding reversible error, resulting in a remand for a new sentencing where the sentencing judge abused her discretion in failing to recognize that she had discretion to s entence in accord with the plea a greement); Kaylor v. S tate, 285 Md. 66, 69, 400 A.2d 419, 421 (1979) (noting that imposition of a sentence in a criminal case is a matter within the broad discretion of the judge and listing the general restraints on a sentencing judge s broad powe r to impose sentences); Logan v . State, 289 Md. 460, 480-87, 425 A.2d 632, 646 (1981) (holding that it was not an abuse of the sentencing judge s discretion or reversible error for the judge to take into consideration at sentencing that the defendant confessed to other crimes, even though the confessions we re obtained illegally); Teasley v. -10- State, 298 Md. 364, 371, 470 A.2d 337, 340 (1984) (holding that even if the sentencing judge mistakenly applied the sentencing guidelines in imposing a consecutive, rather than a concurrent sentence, the sentences imposed were lawful within the statutory limits and constituted the end result of a good-faith exe rcise of the trial judge s discretion ); State v. Dopkowski, 325 Md. 671, 683, 602 A.2d 1185, 1190-91(1992) (finding no abuse of discretion when the trial judge reimposed a five-year sentence, after an adjudication of violation of probation, without the trial judge explicating that he exercised h is discretion in reachin g that res ult). In Maus v. State, 311 Md. 85, 108, 532 A.2d 1066, 1077-78 (1987) we pointed out that [w]hen a court must exercise discretion, failure to do so is error, and ordinarily requires reversal (citing with appr oval Colter v. Sta te, 297 Md. 423, 427-31, 466 A.2d 1286, 128990 (1983)). Similarly, in the present cas e, if the sentencing judge abused his discretion, the error was a proper subject for appellate review on direct ap peal. It is clear tha t Wilkins did not raise any issue c oncerning the propriety of his sentence on direct appeal to the Court of Special Appeals in 1972. See Wilkins, 16 Md. A pp. at 60 1, aff d, 270 M d. 62, cert. denied, 415 U.S. 992. Having failed to raise the issue on direct appeal, he may not raise it here, under t he guis e of a m otion to correct an illega l senten ce. In State v. Wooten, 277 Md. 114, 116-118, 352 A.2d 829, 831-32 (1 976), we held that nothing in the language of Art. 27 § 641A . . . prevent[s] trial judges, in their discretion, from suspending life sentenc es imposed und er [Art. 27] [§] 413. Although Wooten was -11- decided four years after the sentencing in this case, it involved the sentencing court s exercise of discretion and its authority to suspend all but the first eight years of a life sentence imposed for first-degree murder. At the time of sentencing [t[he State objected, contending that the court was without authority to suspend any portion of the term, and thereupon filed a motion . . . to correct what it asserted was an illegal sentence. Id. The trial court denied the motion and, on appeal to the Court of Spec ial Appeals, the intermediate ap pellate court affirmed, holdin g that the senten cing jud ge s ac tion wa s perm issible. Wooten, 277 Md. at 115, 352 A.2d at 831. W e granted c ertiorari and a ffirmed th e judgme nt of the C ourt of Special Appeals. At the time of Wooten, the State, pursuant to Md. Code (1957, 19 68 Rep l. Vol.), Art. 5 § 14, was entitled to appeal from a trial court s denial of a motion to correct an illegal se ntence . 10 Although, in Wooten, we determined the legality of the trial court s decision to suspend part of a life sentence, we did not decide the legality of the trial judge s failure to recog nize its p ower to exercis e judicia l discretio n. In Wooten, the issue bef ore this 10 Effective, January 1, 1974, Md. Code (1957, 19 74), §§ 12 -301 and 12-302 C ourts of the Jud icial Proceed ings Article w ere enacted and restricted the State s righ t to appeal: Section 12-301 provides: Excep t as provide d in § 12-302, a party may appeal from a final judgment entered in a civil or criminal case by a circuit court . . . . Section 12-302 (c), provides: In a criminal case, the State may appeal as provided in this subsection. (1) . . . from a final judgment granting a motion to dismiss or quashing or dismissing any indictmen t, information, presentment or inquisition. (2) The State may appeal from a final judgment if the State alleges that the trial judge: (i) Failed to impose the sentence specifically mandated by the Code; or (ii) Impo sed or m odified a senten ce in vio lation of the M aryland R ules. -12- Court, after direct review by the intermediate appellate court, was whether the sentence was permitted by law. Wooten, 277 Md. at 115, 352 A.2d at 831. The question here is whether the sentencing judge abu sed his discre tion in failing to weigh whether to suspend a portion of the life senten ce imposed. The question in Wooten was substantive, while the question here is p rocedu ral. In Williamso n v. State, 284 Md. 212, 395 A.2 d 496 (19 79), we g ranted certio rari to address whether the sentencing judge had refused to follow this Court s decision in Wooten. The sentencing judge expressly stated at the time of Ms. Williamson s sentencing for murder that, in the judge s opinio n, a life sentence could not b e suspend ed even th ough this C ourt, in Wooten, had held that a portion or all of a life sentence for murder could be suspended within the disc retion o f the sen tencing judge. Wooten, 277 Md. at 115, 352 A.2d at 831. Esse ntial ly, the sentencing judge in Williamson concluded that the Court of Appeals was wrong in its interpretation of Art. 27 § 641A, and so he elected not to follow an opinion of this Court. Williamson, 284 Md. at 213-14, 395 A.2d at 496-97. In reversing the sentencing judge and remanding the case for a new sentencing proceeding, we pointed out that, [b]y precluding any considera tion of susp ending an y part of the life se ntence, the trial judge denied appellant s rig ht to a prope r exercise of the discretion vested in him. Williamson, 284 Md. at 215, 395 A.2d at 497. The question of the sentencing judge s failure to exercise discretion was not raised as a collateral attack to the sentence imposed but was a subject on direct appeal before the Court of Special Appeals after consideration of the issue on remand -13- to the tria l court. See State v. Williamson, 282 M d. 100, 3 82 A.2 d 588 ( 1978) . The procedural history in State v. Chaney, 375 Md. 168 , 825 A.2d 452 (2003) is significant to our resolution of the issues raised in the present case. Following affirmance on direct appeal of his conviction and sentence for murder in the first degree, Chaney filed a Motion For Ap propriate Relief in the Circuit Co urt for Calvert Coun ty. The trial court treated the motion as a petition for post conviction relief. The mo tion was denied and Chaney appea led to the Court o f Spec ial App eals. The intermediate appellate court characterized the motion as one to correct an illegal sentence on the premise that the sentence imposed was illegal because the se ntencing judge did n ot consider suspension of all or a part of Chan ey s sente nce. Chaney, 375 Md. at 171, 825 A.2d at 454. In that case, the trial judge specifically said: The law provides a single penalty and no other penalty and so the sentence in the discretion of the Court in this case is limited to the imposition of that penalty. Chaney, 375 Md. at 175, 825 A.2d at 4 52. Ultimately, the Court of Special Appea ls reversed, holding that the Circuit Court rendered the sentence illegal when it impermiss ibly did not consider a suspended sentence as being within its judicial discretion. Chaney, 375 Md. at 174, 825 A.2d at 455. We reversed. In Chaney, we held that there was insufficient evidence in the record to establish that the sentencing judge failed to recognize that he had the discretion to suspend all or a portion of the life sente nce imposed. Chaney, 375 Md. at 179 , 825 A.2d at 458 . This Court determined that merely because a sentencing judge does not expressly and consecutively -14- acknowledge the existenc e of a seco nd statute permittin g . . . [the] suspension of . . . [a life sentence, is not a] sufficient [basis] to infer that [the sentencing judge] is unawa re of its potential application to the sentence he impos[es] . . . . Chaney, 375 Md at 179, 825 A.2d at 458. Accordingly, we concluded that the sentencing judge did not err and his action did not warrant a new sentencing proceeding. The State and Chaney presented in their briefs, filed in this Court and the interm ediate appellate court, the issue of the leg ality of Chaney s sentence due to the a lleged failure of the sente ncing court to reco gnize its discre tion to suspend part of Chaney s life sentence ; however, during oral argument befo re us, Chaney affirmative ly withdrew any argume nt that [h]is ca se involve[ d] an illegal sentence . . . . Chaney, 375 Md. at 174, 825 A.2d at 455. Thus, in Chaney we did not address the question of illegality of the sentence imposed due to the alleged failu re of the sen tencing jud ge to recognize its discretion to suspend all or any portion of Chan ey s life sentenc e for firstdegree murde r. The Chaney case involved the most fundamental principle of appellate review [] in that the action of a trial cour t is presumed to have been correct and the burden of rebutting that presumption is on the party claiming error first to allege some error and then to persuade us that the error occurred. Chaney, at 183-184, 825 A.2d at 461. Chaney failed to provide us with any evidence sufficient to rebut the presumption that the sentencing judge knew and properly applied the law. We never addressed the question of whether a motion to correct an illegal sentence was the proper vehicle for raising the alleged error occurring in the -15- sentencing procee dings. In Williamson, the question as to the sentencing judge s fa ilure to exercise discretion when he refused to consider suspending any part of the life sentence was raised on direct appeal of Williamson s conviction and sentence for murder in the first degree. Williamson, 284 Md. at 213, 395 A.2d at 496. Although the sentencing judge in Williamson erred in refusing to exercise his discretionary power to suspend the life sentence or any portion of it, his actions in rejecting our previous determination that a sentencing court could suspend all or part of a life sentence denied appellant s right to a proper exercise of the discretion vested in [the judge]. Williamson, 284 Md. at 215, 395 A.2d at 497. We did not characterize the sentence as illegal per se, but concluded that the sentencing judge failed to exercise judicial discretion. Id. Moreover, w e note that any illegality must inhere in the sentence, not in the judge s actions. In defining an illegal sentence the focus is not on whether the judge s actions are per se illegal bu t wheth er the se ntence itself is ille gal. In Wooten, we determined that the trial court had the power to suspend the execution of a portion of a life sentence impos ed for f irst-deg ree mu rder. Wooten, 277 Md. at 110-18, 352 A.2d at 83 1-32. We w ere not asked to decide the question p resented he re, the legality of the trial court s f ailure to reco gnize its pow er to exercise judicial discretion. In other words, the preliminary question here is whether the trial court abused its discretion in failing to exercise disc retion. In our v iew, this is no t a question of sentence legality. This question is more appropriately characterized as one of judicial discretion and the failure to exercise that disc retion. -16- A motion to c orrect an illega l sentence is not an appro priate vehicle to address the question raised in this case . The life se ntence im posed in th is case was not illegal within the contemplation of Rule 4-345(a). Clearly, the alleged defect in sentencing could have been raised on direct appeal from the conviction and sentence imposed in this case. The alleged procedural defect, in the appropriate case, may be a proper subject of post conviction relief. JUDGMENT OF THE COURT OF SPECIAL APPEALS VACATED. CASE REM A N D E D T O T H AT COURT WITH DIRECTIONS TO DISMISS THE APPEAL. RESPONDENT TO PAY THE COSTS IN THIS COURT AND IN THE COURT OF SPECIAL APPEALS. 11 11 The State filed a motion, entitled Motion To Strike Appendix of Responden t, pursua nt to M d. Rule 8-504 (c). In ligh t of our decisio n in this c ase, the m otion is d enied. -17- IN THE COURT OF APPEALS OF MARYLAND No. 65 September Term, 2005 STATE OF MARYLAND v. RALPH EDWARD WILKINS Bell, C.J. Raker Wilner Cathell Harrell Battaglia Greene, JJ. Concurring and Dissenting Opinion by Harre ll, J., which Bell, C.J., Joins. Filed: June 9, 2006 I would re ach nearly the s ame result a s the Majority, but not entirely so. More importantly, I am in disagreement with the reasoning of the Majority opinion. I believe that a sentencing judge s fa ilure to recog nize his or h er discretion in sentencing a defenda nt, if made manifest o n the record , is a deficienc y that inheres in the sentence itself. For that reason, I would consider the merits of Wilkins s argument and, nonetheless, hold that Petitioner failed to prove that the sentencing judge failed to recognize his discretion and exercise it in ordering a life sentence. Thu s, I would reverse the judgment of the Court of Special Appeals and rem and with directions to aff irm, on the merits, the Circuit Cou rt s denial of Wilkins s motion to correct illegal sentence. I. As the Majority states, a court may correct an illegal sentence at any time. M d. Rule 4-345(a). A senten ce is illegal, f or purposes of Md. Rule 4-345(a), when there is some substantive illegality in th e senten ce itself. Evans v. State , 382 Md. 248, 278-79, 855 A.2d 291, 309 (200 4); Walczak v. State, 302 Md. 42 2, 427, 488 A.2d 94 9, 951 (19 85); Corcoran v. State, 67 Md. App. 252, 255, 507 A.2d 200, 202 (1986). The notion of an illegal sentence within the contemplation of the Walczak decision deals with substantive law, not procedural law. It has ob vious refe rence to a se ntence w hich is beyond the statutorily granted power of the judge to impose. Corcoran, 67 Md. App. at 255, 507 A.2d at 202. -19- The Majority contemplates illegality in too narrow and novel a manner. The Majority posits that if the sentence imposed is within the statutorily permitted sentencing limits for the crime or crimes involved, then the sentence is not illegal, despite a failure by the sentencing judge to recognize his or her discretion to suspend all or a portion of the sentence. __ Md. __, __ A.2d __ (20__) (Majority slip op. at 7-9). We have never held so until now. The princ ipal authorities r elied upon by the Majo rity to support its conclusion do not provide the necessary analyses or bases to reach the M ajority s conclusion here. In addition, those principal authorities are distinguishable from the present case because b oth cases concern alleged procedural errors. The Majority cites Randall Book Corporation v. State, 316 Md. 315, 558 A.2d 715 (1989), for the proposition that [a]n error committed by the trial court during the sentencing proceeding is not ordinarily cognizable under Rule 4-345(a) where the resulting sentence or sanction is itself lawful. __ Md. __, __ A.2d __ (20__) (Majority slip op. at 5). In Randa ll Book Corporation, we concluded that, of three contentions argued by the defendant in a motion to correct illegal sentence, one con tention was not perm itted to be raised in such a motion. Randall Book Corp., 316 Md. at 322, 558 A.2d at 719. The defendant asserted that his sentencing violated the Double Jeopardy Clause and Eighth Amendment because the court imposed multiple sentences for the same offense and the sentence imposed was the aggregate of 116 senten ces. Id. The defendant also asserted that the sentencing judge was motivated by imper missible consid erations . Id. We held that the existence of improper -2- motivation, if proven, may justify vacation of the sentence, but did not render the sentence illegal within the me aning o f Rule 4-345 . Randall Book Corp., 316 M d. at 323 , 558 A .2d at 719. If the record reveals that a judge took into account impermissible considerations when sentencing a defen dant, then the judge com mitted an error of pro cedure , as opposed to a error of substantive statutory or constitutional law. Considering extraneous circumstances is an error external to the sentence itself a deficiency of process. The Majority cites also Hill v. United States, 368 U .S. 424 , 430, 82 S.C t. 468, 472, 7 L.Ed.2d 417, 422 (1962), where the U.S. Supreme Court stated that an alleged error by the trial judge where the defendant was not invited to allocute on his own behalf at sentencing, on a motion e quivalent to motion to correct an illeg al sentence (Rule 35 of the Federal Rules of Criminal Procedure), did not transform the sentence imposed into an illegal one. The Court stated: The pu nishmen t meted ou t was not in excess of that prescribed by the relevant statutes, multiple terms were not imposed for the same offense, nor were the terms of the sentence itself legally or con stitutionally invalid in any respect. [ ] Id. (Footnote omitted). Rule 32(a) of the Federal Rules of Criminal Procedure provided in pertinent part, [b]efore imposing sentence the court shall afford the defendant an opportunity to make a statement in his own behalf and to present any information in mitigation of punishment. Hill, 368 U.S. at 425-26, 82 S.Ct. at 470, 7 L.Ed.2d at 419-22 (citing FRCP Rule 32(a)). The Court characterized the purported error as ne ither jurisdiction al nor cons titutional, no t a fundamental defect which inherently results in a complete miscarriage of justice, nor an -3- omission inconsistent with the rudimentary demands of a fair procedure. Hill, 368 U.S. at 428, 82 S.Ct. at 4 71, 7 L .Ed.2d at 421. In contrast to the rules of criminal procedure at issue in Hill and Randall Book Corporation, the error at issue here is an asserted violation of statutory authority (sentencing discretion) vested in the sentencing court. At the time Wilkins was sentenced, Section 641A of Article 2 7 provide d in pertinen t part: Upon entering a judgment of conviction, the court having jurisdiction, may suspen d the impo sition or execution of sentence and place the defendant on probation upon such terms and conditions as the court deems proper. The court may impose a sentence for a specified period and provide that a lesser period be served in confinement, suspend the remainder of the sentence and grant probation for a period longer than the sentence but not in excess of five years. Maryland Code (1957, 1971 Repl. Vol.), Article 27, § 641A.1 In clear, unambiguous and unqualif ied language, [§ 641A] bestows upon courts the power to suspend completely or partially any and all sentences over which they have jurisdiction. State v. Wooten, 277 Md. 114, 117, 352 A.2d 829, 831 (1976). A sentencing judge commits error if he or she refuses to acknowledge his or her power to suspend completely or partially the sentence to be imposed. Williamso n v. State, 284 M d. 212, 215 , 395 A.2d 496, 497 (1979); Wooten, 277 Md. at 117-19, 352 A.2d at 832. The allegation of error in the present case is the imposition of a sentence in a manner that violates a statute. Hence, if made manifest on the record, the 1 Unless otherwise provided, all statutory references are to former Article 27, § 641A. -4- judge s refusal to recognize his or her power to suspend all or part of an imposed sentence results in an illegal sentence because the deficiency inheres in the sentence. II. Wilkins argues that the statements of the sentencing judge demonstrate a refusal to recognize his power to suspend all or a portion of the life sentence u ltimately im posed . I would hold th at the rec ord do es not d emon strate su ch a ref usal. In Williamson, the sentencing judge exp licitly refused to rec ognize his d iscretion to suspend all or a portion of a life sentence. The defend ant was convicted in the Circuit Court for Baltimore County of m urder in the f irst-degree, co nspiracy to murder, and solicitation of murder. Williamson, 284 Md. at 213 , 395 A.2d at 496 . The court sentenced her to life imprisonment for murder an d to a concurrent five-year term for the merged convictions for conspiracy and so licitation . Id. Defendant argued that she was entitled to a new sentencing proceeding because th e sentencin g judge af firmatively declined to abide by ou r holding in Wooten. Id. We ag reed. Williamson, 284 Md . at 215, 395 A.2d at 397. The following exchange between the sentencing court and defense counsel in Williamson underscored the sentencing judge s preju dicial error: THE COURT : As far as the murder conviction is concerned, there s no choice. She gets life. MR. GLASER [de fense counsel]: No, Your Honor, there is a choice. You can suspend part of it. I brought the Wooten case with me. -5- THE COU RT: I understand that, and I complete ly disagree with Judge Raine and the Court of Appeals. I think the Legislature said whe n a perso n kills someb ody else or causes them to be killed, it s life. So as far as I am concerned, the sentence on the murde r charg e is life . . . . *** MR. GLASER: I was going to comment to the Court on the Wooten case, but I guess I won t do that either. THE C OUR T: No. I ha ve very strong feelings ab out that. (Alteration in original). 284 Md. at 213-214, 395 A.2d at 496. We [thought] it evident from the comments of the trial judge that notwithstanding Wooten he refused to recognize his discretionary power to suspend the mandatory life sentence or any part of it. Williamson, 284 Md. at 215, 395 A.2d at 497. Although Williamson raised the issu e on direct a ppeal, it is my view tha t she could have raised it as well in a Rule 4-345(a) motion to correct illegal sentence. Williamson is clearly distinguish able on the facts from th e present case. Here, the sentencing judge uttered no comment that would lead us to conclude that he refused arbitrarily or unreasonably to recognize his discretionary power to suspend all or part of Petitioner s life sentence. According to the record in the present case, the sentencing judge was awa re of his p owe r of d iscre tion and exer cised tha t disc retio n by not suspending any portion of the life sentence imposed. __ Md. __, __ A.2d __ (20__) (Majority slip op. at 8) ( On the other hand, let the re cord clearly sho w we w ill assume tha t we do h ave a right to give something less than the death penalty, but in this case we see no reason in the world why -6- there should be anything other than the life imprisonment in this case because it is just not warranted under the facts of what happened. It w as purely and c learly premed itated firstdegree murder any way you look at it. ). Because the sentencing judge in the present case gave no indication of refusal to exercise his discretion to suspend all or any portion of the life sentence impos ed, I would reverse the judgment of the Court of Special Appeals and remand to that court with directions to affirm the judgment of the Circuit Court for Prince G eorge s Cou nty. Chief Judge Bell authorized me to state that he joins this opinion. -7-

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